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Must a lien be enforceable to remain on a property ?

Saint Petersburg, FL |

Are there any requirements of lien holders to remove a lien if the obligation becomes unenforceable?

For example ... a foreclosure lawsuit is dismissed "with" prejudice ... and the Florida statute of limitations on the promissory notes has expired.

If the lien holder is unable to foreclose ... and is time barred from collecting on the note ... are they still entitled to maintain a lien on the property ?

Are there any requirements for a lien holder to maintain their lien ?

Attorney Answers 3

Posted

It is not unusual for a lienholder with an unenforceable lien to "forget" to remove the lien from the property. If they don't get it removed, you can have a quiet title action done that will remove such liens from the property. To do so, contact a real property attorney in your area.

Carol Johnson Law Firm, P.A. : (727) 647-6645 : carol@caroljohnsonlaw.com : Wills, Trusts, Real Property, Probate, Special Needs: Information provided here is anecdotal and should not be relied upon or considered legal advice. Every matter is different and answers given here are general in nature and may not reflect current Florida law at the time you are reading this posting. Please contact me if you feel you need additional assistance with your matter.

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2 comments

Asker

Posted

The ultimate question is ... "are they under any requirement to remove an unforceable lien ?"

Carol Anne Johnson

Carol Anne Johnson

Posted

Typically, if there is a court order making the lien unenforceable, it is recorded with the clerk, effectively removing the lien. In the alternative, you can send a letter demanding the removal of the lien due to satisfaction, expiration or revocation and the lienholder has 30 days in which to respond by sending a letter of satisfaction that you can then record.

Posted

When title is examined, the title examiner looks at what is recorded in the public records. If it is not clear from what is recorded that a lien has expired, that lien is a "cloud on the title." To remove a lien that is a cloud on the title, you must either get a release from the lien holder or an order from a judge saying that the lien is unenforceable. If your are unsure of your right, you should consult an experienced real estate lawyer in your area.

Disclaimer: This answer is provided for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.

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3 lawyers agree

Posted

While I agree with my colleagues to a certain degree, I do not necessarily agree with your premise. While the statute of limitations may have run on the note, there is a separate statute of limitations dealing specifically with mortgages (5 years from the listed maturity date or 20 years from the filing date if a maturity date cannot be determined from the instrument). Furthermore, the Florida Supreme Court has ruled that since foreclosure is an equitable remedy, even if a lender loses at trial they can, in most circumstances, try to file a new foreclosure suit as the mortgage itself still continues to obligate the homeowner to make payments.

The answers provided herein are for informational purposes only and should not be relied on as providing legal advice. Furthermore, this answer does not create an attorney-c;lient relationship. The hiring of a lawyer is an important decision and should not be based solely on an advertisement or general answer provided to a question on a website

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4 comments

Asker

Posted

Using your logic ... then there is no meaningful distinction between "with" or "without" prejudice ... you are the first Attorney that has shared that opinion with me.

Geil S. Bilu

Geil S. Bilu

Posted

If a suit was actually dismissed with prejudice, then yes, it should be an absolute bar to re-foreclose. However, a dismissal with prejudice typically only occurs when a lien and the underlying obligation have been satisfied (i.e. a short sale, payoff or deed-in-lieu of foreclosure). It does not make sense, therefore, that a lender would dismiss a case with prejudice if the note had not been paid off or otherwise settled. Of course the attorney who filed the dismissal could have just made a mistake--- which the court will normally allow them to correct "in the interest of justice" Something here does not add up, however. Either the lender intended to dismiss the case without prejudice and its attorney made an error or you are unintentionally leaving out some important details in your inquiry

Asker

Posted

The lender didn't dismiss the case ... the Judge dismissed their lawsuit "with" prejudice ... and the lender didn't appeal the ruling either. Furthermore ... the Judge re-affirmed her decision of dismissal "with" prejudice when the Plaintiff attempted to trick her into changing the status of her decision ... not sure what you feel I am leaving out ... but my question remains ... "Are there requirements that Lien Holder must satisfy in order to maintain a lien?" ... especially when they cannot foreclose on the mortgage and they are time barred from collecting on the note.

Geil S. Bilu

Geil S. Bilu

Posted

The fact that it was a judge's ruling rather than a voluntary dismissal explains the confusion. I would recommend that you contact a local real estate attorney who can handle a quiet title action.

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